It is not even essential to the application of this rule that the two instruments should correspond in date, provided they are delivered at the same time, as they take effect from the time of delivery only. And it is competent to show by parol at what time the delivery was actually made. Mayberry v. Brien, 15 Pet. 21; Reed v. Morrison, 12 S. & R. 18; 1Washb. Real Prop. 178. But wherever there is a beneficial seisin in the husband, no matter how short the time, it will be sufficient to clothe the wife with the right of dower. In Grant v. Dodge, 43 Me. 4.89, the above rules were recognized, but it was said that if the tenant would defeat the demandant's claim of dower, the burden would be upon him to prove that the deed and mortgage relied on constituted one transaction. But in a subsequent case, in the same court, Moore v. Rollins, 45 Me. 493, it was held that where one has received a deed of an estate and given back a mortgage of the same to secure the purchase money, if the deeds are of the same date, have the same attesting witnesses, and are acknowledged before the same magistrate, and the notes secured are of the same date with the mortgage, in the absence of all proof to the contrary, the deeds will be regarded as one and the same transaction. [The case of McGowan v. Smith, 44 Barb. 233, is also cited and construed.] * * *
1 Sandford's Chancery (N. Y.), 76. - 1843.
The Assistant Vice-Chancellor. - * * * Before disposing of the case on this point, I will examine another question which was fully discussed, and the determination of which may be a guide to both parties in the further progress of the suit: viz., the extent of the right of dower of Magdalen Van Dyck in the premises, and depending upon that, her interest in the event of the suit and her standing as a witness.
The bond and mortgage were executed on the same day, and no doubt at the same time, that the deed was given and the money paid to Crandell. In Gilliam v. Moore, 4 Leigh's R. 30, where the verdict found that the deed and mortgage were executed on the same day, the court say they are bound to infer that they were given at the same time, and were parts of one and the same transaction. The complainant insists that the bond and mortgage were given for the purchase money of the farm, and that, therefore, Magdalen Van Dyck's dower therein is subject to the mortgage; that she is dowable of the equity of redemption only, while she claims dower in the whole, and denies that the mortgage was given for the purchase money within the meaning of the equitable principle on that subject which is now embodied in our statute.
1 Rev. Stat. 740, 1,§, 5, enacts, that "where a husband shall purchase lands during coverture, and shall at the same time mortgage his estate in such lands to secure the payment of the purchase money, his widow shall not be entitled to dower out of such lands as against the mortgagee or those claiming under him, although she shall not have united in such mortgage, but she shall be entitled to her dower as against all other persons."1
As this provision was prospective, it does not affect the purchase and mortgage in question, which were made and given before the adoption of the Revised Statutes. The Legislature in this section, it is supposed, intended to enact the existing rule of law. This appears from the report of the revisers accompanying the section.
Chancellor Kent, in his commentaries, says that the transitory seisin for an instant, "when the husband takes a conveyance in fee, and at the same time mortgages the land back to the grantor or to a third person, to secure the purchase money in whole or in part," is not sufficient to give the wife dower. 4 Kent's Com. 38, 39, 2d ed. No reported adjudication that I have met with in the courts of this State, goes as far as the learned commentator has declared the principle to extend. The leading case is Stow v. Tifft, 15 Johns. R. 462. In that case, as well as the subsequent one of Jackson d. Bruyn v. De Wiit, 6 Cowen, 316, the mortgage for the purchase money was given to the grantor. This was the fact also in the following cases in other States where the same decision was made: Boyce v. Rut-ledge, 1 Bay's R. 312; Trustees of Frazier v. Center, 1 McCord's Ch. R. 270, 279; Gilliam v. Moore, 4 Leigh, ubi supra. And Holbrook v. Finney, 4 Mass 566.
The principle on which the doctrine rests, clearly extends to the case of mortgages to third persons. In the judgment of the court, as pronounced by Judge Spencer in Stow v. Tifft, it is placed on the ground that the seisin of the husband is an instantaneous seisin only; that the estate passes in to him and is drawn out of him, quasi uno flatu, and by one and the same act. Or as expressed by Mr. Park in his Treatise on the Law of Dower, page 43, "The seisin of the husband is for a transitory instant; that is to say, where the same act which gives him the estate, conveys it out of him again." Chief Justice Parsons in Holbrook v. Finney, takes the same ground. It can make no possible difference in the duration or the transit of this seisin, whether the mortgage be given to the grantor or to a third person. In either event, he gains the estate in the same instant, and by the same act, which conveys it out of him.
1 Sec § 173. N. Y. R. P. L. - ED.
Now, in this case, the substance of the transaction was this: We will suppose the three parties, Crandell and Maria and Henry P. Van Dyck together; and if they were not all present, some one must have acted for the absentee. Crandell delivered his deed to Henry. Maria Van Dyck paid the $2,000 to Crandell, and Henry delivered his bond and mortgage to her for the $2,000. Each of these events was in consideration of the other. They were inseparably connected by the previous contract between the parties, and in contemplation of law, were all accomplished at the same moment of time. The seisin of Henry was but for an instant. He received it by means of the money of his mother, paid to Crandell, and it passed out of him in the same instant, by the mortgage to secure that money.